The judge in a closely watched lawsuit challenging the legality of DVD-copying software said she was “substantially persuaded” by past court rulings that favored copyright holders, but closed a hearing Thursday without issuing a ruling in the case.

….U.S. District Judge Susan Illston, considering a summary judgment motion, said she had carefully read decisions in two similar cases; judges for Motion Picture Association of America v. 2600 and U.S. v. ElcomSoft said that intellectual property holders can pursue software developers who offer products that crack copyright protections.

….In the 2600 case, an appellate court ordered the hacker magazine to stop posting or linking to DVD-cracking code. In ElcomSoft, a jury acquitted a Russian software company of criminal charges over a tool that cracked the security on eBooks. But before the trial, a judge refused to toss the case out amid assertions that the DMCA should not apply.

At Thursday’s hearing, the studios argued that 321’s software violates the DMCA by stripping antipiracy protections out of DVDs to copy them. Essentially, the studios argue that it shouldn’t matter what the consumers intend to do with the DVD after they’ve copied it–that the mere action of breaking the code runs afoul of the law.

….During the hearing, 321’s attorney argued that declaring the company’s products illicit would amount to “a ban on the digital printing press,” because it would ban acts of copying and excerpting film that traditionally have been legal in the non-digital world.

“A copyright holder has no right to prevent someone from engaging in fair use,” Durie said, noting that the studios’ position would prevent students from excerpting film clips for school projects or parents making backups of their work. “That, I would suggest, can’t be right. That can’t be what the drafters of the DMCA intended.”

It can’t be what they intended if they have half a brain, that is. Either way, it needs to be changed to clear up this ambiguity: every consumer’s right to make a backup copy of a DVD supecedes the copyright holder’s concerns about piracy.

The judge noticed a problem of her own with the DMCA:

At one point, the judge called on Department of Justice attorney John Zacharia to answer some questions about the DMCA. The attorney has weighed in on the side of the studios in an attempt to defend the constitutionality of the DMCA.

Illston asked Zacharia to explain the conundrum of locking up copyrighted works behind encryption and then making the breaking of that encryption illegal, even after the copyrights on those works expire. The judge wondered if it would effectively extend copyrights to keep such works out of the public domain.

Zacharia said it would not, because the copyright had expired.

“But it’s encrypted. If it doesn’t stop being encrypted, it’s still encrypted,” Illston said, adding that such protected works still couldn’t be legally copied.

“The studios haven’t claimed copyright infringement in this case because they know that they’d lose,” says 321 Studios attorney Michael Page. “The studio has never presented any evidence that people have misused our product.”

Irrelevant, say the studios. “The law says that I have the right to lock up my intellectual property and you don’t have the right to break that lock,” says Motion Picture Association of America attorney Russell Frackman. “If you break into my house, it doesn’t matter if you take anything.”

All of these legal arguments boil down to the issue of “fair use” copyright law, which gives consumers the right to make copies of media that they have purchased as long as they are employed for personal use. Since the DMCA law prohibits breaking any copyright encryption, fair use advocates argue, the 1998 act that the studios have based their case upon prohibits a consumer’s right to make personal copies of legally purchased media.

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About Eric Olsen

Career media professional and serial entrepreneur Eric Olsen flung himself into the paranormal world in 2012, creating the America's Most Haunted brand and co-authoring the award-winning America's Most Haunted book, published by Berkley/Penguin in Sept, 2014.
Olsen is co-host of the nationally syndicated broadcast and Internet radio talk show After Hours AM; his entertaining and informative America's Most Haunted website and social media outlets are must-reads: Twitter@amhaunted, Facebook.com/amhaunted, Pinterest America's Most Haunted.
Olsen is also guitarist/singer for popular and wildly eclectic Cleveland cover band The Props.